Detaining Families

The United States currently detains more protection-seeking families than any nation in the world. Since 2001, parents and their children have been held at various times in five different detention facilities in New Mexico, Texas, and Pennsylvania, as they seek asylum in the United States. The number of detention beds reserved exclusively for families has ballooned since the first facility opened in 2001. Between 2001 and 2016, capacity reserved exclusively for detaining families increased by an astronomical 3,400 percent. Yet, despite this growth in detention, little is known about how these families fare in the immigration court process and what barriers they face in pursuing their asylum claims. This information is particularly important as government officials and policymakers weigh the use and potential expansion of family detention.

This report presents findings from the first empirical analysis of asylum adjudication in family detention. Drawing on government data from over 18,000 immigration court proceedings initiated between fiscal years 2001 and 2016, this report documents how families detained in the United States’ family detention centers proceeded through the court process.

The analysis of court data and government records presented in this report reveals an expanding system of detention that imprisons families seeking asylum, sometimes for prolonged periods, and presents serious hurdles to a fair court process. The main findings presented in the report include:

Families have been detained in remote locations, have faced barriers accessing the courts, and—despite valiant pro bono efforts to assist them—have routinely gone to court without legal representation. Detained parents and children rely on volunteers and nonprofit attorneys willing to travel to remote detention centers to provide pro bono representation, which is still insufficient to serve all detained family members. During the period studied, we found:

Families were detained in remote locations, far away from urban centers and service providers. Almost all hearings in family detention (93 percent) were conducted remotely over video, rather than in a traditional face-to-face courtroom setting.

Families released from detention were more likely to have legal representation. At the most recent merits hearings for families in our study, 76 percent of family members who had been released from detention were represented by counsel, compared to 53 percent of family members who remained detained.

Barriers to obtaining lawyers in detention were particularly profound at the initial stage of proceedings, where only 32 percent of detained family members found counsel.

The vast majority of families released from detention showed up for court.

Despite the challenges posed by detention, family members pursued viable claims for protection and showed up for proceedings after release from detention. During the 15 years of our study, we found:

Family members who were released from detention had high compliance rates: 86 percent of released family members (with completed and pending cases) had attended all of their court hearings that occurred during our study period. This rate was even higher among family members applying for asylum: 96 percent of asylum applicants had attended all their immigration court hearings.

Family members who were released from detention and obtained counsel had a relatively high rate of success in their completed cases. Half (49 percent) of family members who were released and sought legal relief from removal with the help of an attorney were allowed to stay at the completion of their case. By comparison, only 8 percent of detained family members without representation had the same success in their cases.

Case outcomes for families varied widely, however, depending on the jurisdiction in which their cases were adjudicated. In addition to the different asylum grant rates of judges in each jurisdiction, we find that disparities in case outcomes reflect broader jurisdictional inequities, such as the availability of local attorneys and the willingness of local prosecutors to grant a case closure based on prosecutorial discretion.

Families have been subjected to overdetention by immigration officials, and the courts have served as an important check and balance in this complex system.

Our study documents the often lengthy and wasteful process associated with detention. Our review of the government’s own data supplies ample evidence that families have been subjected to overdetention by immigration officials. The study further reveals the important role immigration courts can play in protecting due process—yet these checks and balances can vary considerably across different jurisdictions. This variability results in uneven access to justice for asylum-seeking families. Analyzing immigration court data, we found:

Among the detained family members ICE decided not to release, 59 percent appealed ICE’s custody decision and were provided a bond hearing in front of a judge.

Of these family members who had a judicial bond hearing, 57 percent of them were granted a form of release by the judge.

DHS officials regularly refused to set bond, or issued prohibitively high bond amounts, resulting in the overdetention of families. Immigration judges systematically reversed these no-bond detention decisions by ICE. When ICE officers did set bond for detained families, immigration judges routinely found that the amount was too high.

One-third (34 percent) of family members whose cases were completed during our study period were held in detention for the duration of the immigration court process. In some cases, these detentions lasted three or more months.

Now is a particularly crucial time to engage in a data-driven analysis of the impact that family detention has on immigration court adjudication. This understudied topic is particularly important given the Trump administration’s explicit intentions for immigration enforcement—including proposals to expand expedited removal, heighten standards for asylum claims, and increase the use of detention throughout the adjudication process. The findings presented in this report are vital to these and other policy decisions involving asylum-seeking families and the immigration courts.

This report documents how detained families fare in the immigration court process and what barriers they face in pursuing their asylum claims. The analysis of government data and records reveal that families show up for their proceedings and have viable claims for protection. Further, this report shows how the government overuses detention as a way to manage the migration of families fleeing violence in their home countries. Finally, the findings presented in the report underscore the vital role immigration courts have in maintaining—albeit unevenly—due process in asylum proceedings.

These findings provide evidence that supports the following:

Families must be afforded a fair day in court and due process, without being detained and subjected to fast-track deportation processes. Families should be placed directly into proceedings before an immigration judge, rather than first subjected to a summary removal process. Expedited removal and other summary processes all too often circumvent the checks and balances that immigration courts can provide and limit the ability of individuals to fully present their case and access justice.

Detained families should have access to government-funded counsel in immigration court. Despite intensive pro bono efforts, access to counsel remains a pressing issue for families in detention. Representation may be the difference between life and death for families and other individuals seeking asylum.

Immigration judges should have additional training, resources, and standardization for adjudicating cases of detained families. There is significant variation among different court jurisdictions regarding the treatment of family detention cases, the rates of legal representation for families, and the number of family members who submit applications for relief. Increased training and oversight mechanisms would help minimize such variation, thereby ensuring outcomes in family cases are not adversely affected as a result of location.

The immigration bench must maintain judicial independence. Immigration courts have played an important role in reviewing problematic and erroneous decisions in cases pertaining to families and ensuring individuals have a fair opportunity to present their claims. The independence of immigration courts must be protected in order to preserve their vital function in reviewing the administrative decisions of immigration authorities and asylum officers. It is also crucial that immigration judges are given sufficient time to decide their cases, without the imposition of numerical quotas for case completion.

About the Data

This report analyzes government data obtained using the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR), the division of the Department of Justice that conducts immigration court proceedings. The authors obtained these data for analysis from the Transactional Records Access Clearinghouse (TRAC), a data-gathering and research nonprofit at Syracuse University. This report identifies 18,378 immigration court proceedings that began between 2001 and 2016 in one of five family detention centers and were completed or still pending adjudication at the end of fiscal year 2016. These proceedings were associated with the five family detention centers studied: (1) Berks Family Residential Facility (n = 4,086); (2) T. Don Hutto Residential Center (n = 2,928); (3) Artesia Family Residential Center (n = 1,316); (4) Karnes County Residential Center (n = 3,760); and (5) South Texas Family Residential Center (Dilley) (n = 6,293).

This report also relies on other public records related to family detention obtained by the authors from EOIR and the United States Department of Homeland Security (DHS) using FOIA. These materials are available to the public in an online appendix created by the authors. See http://libguides.law.ucla.edu/detainingfamilies.